Chan v Valmorbida (No 2) - [2020] VSC 633

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
COMMERCIAL LIST

S CI 2017 03211

KAIRU (‘ERICA’) CHAN & ORS	Plaintiffs
v
VALMORBIDA CUSTODIANS PTY LTD (ACN 609 840 539) & ORS (according to the Schedule)	Defendants

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JUDGE:	DELANY J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September 2020
DATE OF RULING:	28 September 2020
CASE MAY BE CITED AS:	Chan v Valmorbida (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 633

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PRACTICE AND PROCEDURE – Application to amend defence including to withdraw admissions previously made – Where no evidence in support of the withdrawal of admissions – Good cause not shown – One amendment to correct error allowed – Gregorich v Khouri [2020] VSC 5, Collie v Merlaw Nominees Pty Ltd(in liq) & Anor [2001] VSC 39 applied – Civil Procedure Act 2010 (Vic) s 18 and s 23.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Sparke QC with Mr J Barber and Mr J Carney	Arnold Bloch Leibler
For the Defendant	Mr S Senathiraja QC with Mr J Graham	Lawson Hughes Peter Walsh

HIS HONOUR:

Introduction

The plaintiffs apply by summons dated 16 September 2020 to strike out paragraphs 38(a)(i), 42(b), 47 and 48 of the amended defence of the 2^nd to 4^th defendants (‘the trustees’) dated 28 August 2020 (‘amended defence’). The amended defence pleads to the plaintiffs’ amended statement of claim dated 24 July 2020 (‘ASC’). The trustees apply by letter for leave to file and serve the amended defence. The issue concerning the specific paragraphs identified in the summons concerns the withdrawal of admissions made by the trustees in their original defence dated 20 September 2017 (‘original defence’) and whether leave should be given to file and serve the amended defence in a form that withdraws previous admissions as contended for on behalf of the trustees.

The principles

The power to amend in r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 authorises the Court to order, or grant leave to amend any pleading for the purpose of determining the real question in controversy between the parties to the proceeding, to correct any defect or error in the proceeding, or so as to avoid multiplicity of proceedings.

The parties to the application are agreed that the decision of Nichols J in Gregorich v Khouri[1] helpfully identifies the principles to be applied on such an application:
[1][2020] VSC 5.

5.Pursuant to rule 36.01 of the Supreme Court (General Civil Procedure) Rules 2015 the Court may at any stage order that any party have leave to amend any document in the proceeding, for the purpose of determining the real question in controversy between the parties, correcting any defect or error in the proceeding or avoiding multiplicity of proceedings.[2]
6.Whether an amendment should be permitted is a matter of discretion, to be exercised according to an assessment of where justice lies. While it is neither possible nor desirable to delimit the factors…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chan v Valmorbida (No 2)

Details

AGLC: Chan v Valmorbida (No 2) [2020] VSC 633
Case: [2020] VSC 633
Decision Date: 28 September 2020

CaseChat Overview and Summary

The parties in this case were Chan and Valmorbida. They were involved in a legal dispute, and the matter was heard in the Supreme Court of Victoria. Chan sought to amend the defence to withdraw admissions previously made, and Valmorbida opposed the application. The legal issues that the court had to decide involved whether Chan had provided sufficient evidence to justify the withdrawal of the admissions and whether good cause was shown for the amendment. Additionally, the court had to determine whether an amendment to correct an error was permissible.

The court considered the relevant legal principles and statutes, including the Civil Procedure Act 2010 (Vic) sections 18 and 23, as well as the cases of Gregorich v Khouri and Collie v Merlaw Nominees Pty Ltd. The court found that Chan had not provided any evidence to support the withdrawal of the admissions. Furthermore, the court held that good cause had not been demonstrated for the amendment. However, the court allowed one amendment to correct an error in the defence. The court's reasoning was based on the fact that there was no evidence to support the withdrawal of the admissions, and good cause had not been shown. The court also noted that the amendment to correct an error was permissible under the Civil Procedure Act.

The final orders of the court were that the application to withdraw the admissions was dismissed, and the amendment to correct an error was allowed. This decision highlights the importance of providing evidence and demonstrating good cause when seeking to amend a defence in a legal dispute. It also emphasises the court's discretion in allowing amendments to correct errors, as long as they are not prejudicial to the opposing party.

Orders